Plaintiff
Daniel Robert Holt (“Mr. Holt”) brings this
action against Defendants West Virginia Regional Jail &
Correctional Facility Authority, David A. Farmer,
individually and in his official capacity as Executive
Director of WVRJCFA, Timothy King, individually and in his
official capacity as Administrator of the Western Regional
Jail, Anthony K. Leonard, individually and in his official
capacity as Administrator of the South Central Regional Jail,
Hansford L. Slater, individually and in his official capacity
as acting Administrator of the South Western Regional Jail,
(collectively “WVRJCFA”), and Primecare Medical
of West Virginia, Inc. (“Primecare”) alleging
violations of his constitutional rights pursuant to 42 U.S.C.
§ 1983, specifically alleging improper medical treatment
of his left shoulder. Pending before the Court are motions to
dismiss filed by Primecare, (ECF No. 6), and WVRJCFA, (ECF
No. 12), and Plaintiff's motion for leave to file amended
complaint, (ECF No. 21). For the reasons discussed below, the
Court GRANTS Primecare's motion to
dismiss, GRANTS IN PART AND DENIES IN PART
WVRJCFA's motion to dismiss, and GRANTS
Plaintiff's motion for leave to amend.

I.
BACKGROUND

This
case arises out of Mr. Holt's medical care that he
received while he was under the custody, care, and control of
the West Virginia Regional Jail and Correctional Facility
Authority. Mr. Holt alleges that, on or about March 15, 2015,
he dislocated his left shoulder while he was incarcerated at
the Western Regional Jail, which is maintained and operated
by the West Virginia Regional Jail & Correction Facility
Authority. (ECF No. 17 at 2.) Employees of Primecare then saw
Mr. Holt and had x-rays taken of his shoulder. (Id.)
Mr. Holt alleges that his shoulder remained dislocated for
several weeks before he was taken to the ER at a local
hospital. (Id.) During his wait, Mr. Holt states
that other detainees assaulted him. Mr. Holt claims that he
continued to suffer multiple dislocations and was treated at
St. Mary's Medical Center, Cabell-Huntington Hospital,
and Scott Orthopedic. (Id.) Mr. Holt asserts that he
was dismissed from Scott Orthopedic for refusing to remove
his sling to take a shower before surgery, requiring him to
have surgery on his shoulder at Teays Valley Orthopedic.
(Id.)

On or
around July 10, 2016, Mr. Holt states that he became
incarcerated at South Central Regional Jail where he suffered
multiple dislocations of his left shoulder, prompting him to
visit Teays Valley Orthopedic again. (Id. at 3.) Mr.
Holt received surgery for his shoulder on September 2, 2016
after his term at South Central Regional Jail. (Id.)

Mr.
Holt was again incarcerated at South Central Regional Jail on
or about October 4, 2016 where he allegedly was denied proper
care for his shoulder, which prompted him to file an internal
grievance with the jail. (Id.) On or around November
4, 2016, Mr. Holt was transferred to South Western Regional
Jail. (Id.) During his time at South Western, he
suffered more dislocations of his shoulder on November 8 and
November 11 of 2016, which required treatment at Logan
General Hospital. (Id.) He again suffered a third
dislocation on November 13, 2016, which the medical staff
allegedly refused to treat, stating that he needed to see a
surgeon. (Id. at 4.) Mr. Holt alleges that he was
stuck at South Western Regional Jail with severe pain until
his arm turned purple, which required him to be transported
back to Logan General Hospital on November 14, 2016 to have
his arm re-set, but the medical staff was unable to re-set it
due to the pain. (Id.) Mr. Holt was then returned to
South Western Regional Jail where he allegedly remained for
23 days in severe pain until the Circuit Court of Kanawha
County, West Virginia issued an order compelling the West
Virginia Regional Jail Authority to transfer him to a medical
facility to treat him. (Id.) He was then taken the
Ruby Memorial Hospital and had emergency surgery on his
shoulder. (Id.) Mr. Holt was released from custody
on December 20, 2016. (Id.)

Primecare
filed its motion to dismiss on June 1, 2017. (ECF No. 6.) Mr.
Holt responded to that motion on June 29, 2017, (ECF No. 10),
and Primecare filed its reply in support of the motion on
July 7, 2017, (ECF No. 14). Mr. Holt filed a supplement to
his response on August 15, 2017. (ECF No. 20.) WVRJCFA filed
their motion to dismiss on June 30, 2017, (ECF No. 12), and
Mr. Holt responded to that motion on July 28, 2017, (ECF No.
16). WVRJCFA filed their reply on August 11, 2017. (ECF No.
19.) As such, both motions to dismiss are fully briefed and
ripe for adjudication. Mr. Holt filed a Motion for Leave to
File Amend Complaint on February 28, 2018. (ECF No. 21.)
Defendants have yet to file a response, as the time for
response has not yet run, however the Court will nonetheless
proceed to disposition.

II.
STANDARD OF REVIEW

A
motion to dismiss for failure to state a claim upon which
relief may be granted tests the legal sufficiency of a civil
complaint. Fed.R.Civ.P. 12(b)(6). A plaintiff must allege
sufficient facts, which, if proven, would entitle him to
relief under a cognizable legal claim. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554-55 (2007). A case should be
dismissed if, viewing the well-pleaded factual allegations in
the complaint as true and in the light most favorable to the
plaintiff, the complaint does not contain “enough facts
to state a claim to relief that is plausible on its
face.” Id. at 570. In applying this standard,
a court must utilize a two-pronged approach. First, it must
separate the legal conclusions in the complaint from the
factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Second, assuming the truth of only the
factual allegations, the court must determine whether the
plaintiff's complaint permits a reasonable inference that
“the defendant is liable for the misconduct
alleged.” Id. Well-pleaded factual allegations
are required; labels, conclusions, and a “formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555; see also
King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016)
(“Bare legal conclusions ‘are not entitled to the
assumption of truth' and are insufficient to state a
claim.” (quoting Iqbal, 556 U.S. at 679)). A
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” thereby “nudg[ing] [the] claims across the line
from conceivable to plausible.” Twombly, 550
U.S. at 555, 570.

III.
DISCUSSION

A.
Primecare's Motion to Dismiss

Primecare's motion argues that Mr. Holt's claims must
be dismissed on the basis of three grounds: (1) Mr.
Holt's allegations regarding his medical treatment do not
meet the legal threshold for a viable civil rights claim
under the 8th Amendment; (2) Mr. Holt's claim must be
dismissed because he failed to exhaust his administrative
remedies; and (3) Mr. Holt has failed to comply with the
Notice of Claim and screening Certificate of Merit
requirements of the Medical Profession Liability Act
(“MPLA”). (See ECF No. 7.) With regard
to Mr. Holt's civil rights claim under the 8th Amendment,
Primecare argues that Mr. Holt has no claim under the 8th
Amendment's cruel and unusual punishment protection
because Mr. Holt received extensive medical care. (ECF No. 7
at 3-5.) Primecare alleges that there was simply a
disagreement between Mr. Holt and Primecare regarding the
type and extent of treatment Mr. Holt was to receive for his
dislocated shoulder, and that such a disagreement is not a
valid cause of action under the 8th Amendment. (Id.
at 5.) Next, Primecare argues that Mr. Holt failed to exhaust
his administrative remedies, thus requiring the claim to be
dismissed. (Id. at 5-7.) Primecare maintains that,
under the West Virginia Prisoner Litigation Reform Act
(“WVPLRA”), West Virginia Code § 25-1A-2, an
inmate is mandated to exhaust all of the procedures
promulgated by the agency before a civil action may be
brought. (Id. at 5-6.) Primecare argues that Mr.
Holt's failure to allege anything beyond filing an
internal grievance, such as information contained in the
grievance or appeal of the grievance, is insufficient to find
that Mr. Holt exhausted his administrative remedies.
(Id. at 7.) Lastly, Primecare asserts that to the
extent Mr. Holt is claiming medical negligence, Mr. Holt is
required to follow the Medical Professional Liability Act
(“MLPA”), West Virginia Code § 55-7B-1,
et seq., which Primecare alleges Mr. Holt has failed
to do. (Id. at 7-10.) Primecare maintains that Mr.
Holt has failed to allege in his amended complaint that he
complied with the requirements of the MLPA. Primecare argues
that such compliance is mandatory before filing suit in
federal court, particularly in West Virginia. (Id.
at 8-9.)

In his
response, Mr. Holt first asserts that he has properly pled
the elements as required under 42 U.S.C. § 1983. (ECF
No. 11 at 5-8.) Mr. Holt argues that the standard of
“deliberate indifference” has been met by
alleging that Primecare withheld necessary medical care
causing Mr. Holt to suffer extreme pain in his shoulder,
required Mr. Holt to remove his sling, and punished Mr. Holt
for not “fixing” his shoulder himself.
(Id. at 7-8.) Mr. Holt also alleges that Primecare
ignored the seriousness and severity of the injury and
complex surgeries that Mr. Holt needed to fix his shoulder.
(Id. at 8.) With regard to exhaustion of
administrative remedies, Mr. Holt argues that, based on
Fourth Circuit precedent, an inmate is not required to allege
an exhaustion of remedies in order to avoid dismissal.
(Id. at 8 (citing Anderson v. XYZ Corr. Health
Servs., 407 F.3d 674 (4th Cir. 2005).) Mr. Holt further
maintains that he stated that he filed an internal grievance
and it is the defendant's burden to show that the
plaintiff did not exhaust his administrative remedies.
(Id. at 8-9.) Additionally, Mr. Holt argues that he
is not an inmate as defined by the WVPLRA, and therefore does
not have to exhaust his administrative remedies.
(Id. at 9.) Lastly, Mr. Holt concedes that the MLPA
applies in this case, however Mr. Holt argues that
Defendant's reading of the MLPA is too narrow and ignores
that MLPA's exception allowing “a plaintiff to file
a negligence action against a medical provider without filing
a Certificate of Merit.” (Id. at 9-10.) Mr.
Holt argues that due to the impending statute of limitations
set to bar the claim, his situation fell under one of the
exceptions created by the MLPA, which allows him to file the
Certificate of Merit within 180 days[1] of the health care provider
receiving notice of the claim. (Id. at 10.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In its
reply, Primecare reiterates its argument that Mr. Holt&#39;s
complaint does not meet the high burden of alleging that
Primecare acted with deliberate indifference to the medical
need because Mr. Holt admits that he received medical
treatment on numerous occasions by Primecare. (ECF No. 14 at
2-3.) Primecare further argues that a mere alleged delay in
treatment is not enough to constitute a violation of the 8th
Amendment unless it causes substantial, serious harm.
(Id. at 3.) Next, Primecare argues that only persons
are subject to liability under 42 U.S.C. &sect; 1983, which
provides a private remedy for violations of federal law.
(Id. at 3-4.) However, Primecare asserts that it is
not a person, and therefore not subject to suit under &sect;
1983. (Id.) In regard to Mr. Holt&#39;s
administrative remedies, Primecare reiterates its argument
that Mr. Holt did not complete the grievance process and
therefore did not exhaust his administrative remedies as
required. (Id. at 4-5.) Primecare additionally
argues that the WVPLRA applies to former, as well as ...

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